Baring Asset Management Limited v. Baringsasia LTD
Claim Number: FA2205001994589
Complainant is Baring Asset Management Limited (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is Baringsasia LTD (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baringsasia.com>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 2, 2022; the Forum received payment on May 2, 2022.
On May 3, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <baringsasia.com> Domain Name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 9, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@baringsasia.com. Also on May 9, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 6, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trade mark BARINGS registered in the USA for financial services with first use recorded as 2005. It owns barings.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark, wholly incorporating it and adding only the generic term ‘asia’ and the gTLD “.com” neither of which distinguishes the Domain Name from the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used deceptively for a site mimicking the official site of the Complainant using the Complainant’s trade mark and logo as a masthead in a suspected phishing scheme featuring a client log in portal identical to that of the Complainant and other material copied from the Complainant’s site. This is registration and use in bad faith diverting and confusing Internet users in full knowledge of the Complainant and its rights. The Respondent is based in Arizona and would not be able to trade as Barings Asia Ltd there, the name given to the WhoIs database for the Respondent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark BARINGS registered in the USA for financial services with first use recorded as 2005. It owns barings.com.
The Domain Name registered in 2022 has been used for a site purporting to be an official site of the Complainant using the Complainant’s mark and logo as a masthead and other material copied from the Complainant’s site including a client portal in an apparent phishing attempt.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of the Complainant's BARINGS mark (which is registered in USA for financial services with first use recorded as 2005), the generic term ‘asia’ and the gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘asia’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's registered trade mark for the purposes of the Policy.
The gTLD “.com” does not serve to prevent confusing similarity between the Domain Name and the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. Although the Respondent is recorded as Barings Asia Ltd in the WhoIs database it is based in Arizona where it would not be possible for it to trade under this designation. Accordingly, the Respondent appears to have submitted false contact details to the WhoIs database. There is, therefore, no credible evidence to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Domain Name has been used for commercial purposes which is not legitimate non commercial fair use.
The Domain Name has been used in a deceptive phishing scheme using the Complainant’s trade mark and logo as a masthead and other material copied from the Complainant’s site including a client log in portal to purport to be an official site of the Complainant. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark).
The Respondent has not responded to this Complaint or offered any explanation for his registration and use of the Domain Name.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use of the Complainant’s logo and material copied from the Complainant’s web site by the Respondent shows it has actual knowledge of the Complainant, its rights, business and services.
Diverting Internet users for commercial gain and impersonating a complainant by use of a complainant’s mark and logo in a fraudulent phishing scheme is confusing and disruptive and evinces bad faith registration and use. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where“Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paras 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baringsasia.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 7, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page